Judgment :- K.A. Abdul Gafoor, J. The petitioners applied for toddy shop licences, producing Exts. P1 and P7 in the case of the petitioner in O.P. No. 12536/02 and Exts. P1 and P2 in the case of petitioner in O.P. No. 12878/02 respectively, for shop No. 37 of Chittoor range and shop No. 54 of Palakkad range. Licences were provisionally granted in their favour, subject to confirmation by the Commissioner. That provisional grant was based on the preference available to the petitioners in terms of Rule 5(2) of Kerala Abkari Shops Disposal Rules, 2002. This is an admitted fact by the petitioner. Rule 5(2) reads as follows : "5. The Grant of privilege of vending Toddy Shops shall be subject to the following conditions, namely - - (1) xx xx xx (2)(a) While giving privilege, preference shall be given to those applicants who had previous experience in conducting Toddy Shops not exceeding three, in any particular year between the period 1996 to 2001." 2. It was found out by the Assistant Excise Commissioner who made provisional grant that the petitioners had conducted more than three shops in the year 1996-97. Therefore, a show cause notice Ext. P2 was issued. They submitted reply. Anyhow, provisional grant was made subject to confirmation by the Excise Commissioner. Now the Excise Commissioner has declined confirmation as per Ext. P6 in O.P. No. 12536/02 and Ext. P2 in O.P. No. 12878/02. This is a common order in both the cases. It is under challenge in these original petitions. 3. The petitioners submit that the confirmation is declined on the ground that they suppressed the fact of conducting more than 3 shops in the year 1996-97, when credentials were filed along with the application for grant of licence. They submit that the certificate Ext. P1 given by the Excise Authorities is for the year 1999-2000 in O.P. No. 12536/02 and for the year 1997-98 in O.P. No. 12878/02. The respondents did not have a case that either of them had conducted more than three shops in the said years, as the case may be. Therefore, there is no suppression by them. Ext. P7 certificate issued by the Kerala Toddy Workers Welfare Fund Board marked in O.P. No. 12536/02 clearly showed that the petitioner in that O.P. had conducted more than 3 shops between the period 1996-2001. So also, Ext. Therefore, there is no suppression by them. Ext. P7 certificate issued by the Kerala Toddy Workers Welfare Fund Board marked in O.P. No. 12536/02 clearly showed that the petitioner in that O.P. had conducted more than 3 shops between the period 1996-2001. So also, Ext. P2 certificate from the Welfare Fund Board produced by the petitioner in O.P. No. 12878/02 discloses the same situation for the year 1997-98. The respondents do not have a case before me that Ext. P7 and P2 referred to above had not been produced by the respective petitioners along with the application for grant of licence. 4. When the petitioner in O.P. No. 12536/02 had produced Ext. P7 certificate which clearly shows that he had conducted more than 3 shops during the relevant years, necessarily the District Collector ought not have included him in the preferential category in terms of Rule 5(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002. Therefore, it is totally illegal so far as he is concerned to style him that he had obtained the provisional grant by suppressing any fact. Ext. P7 shows that there was no suppression. Ext. P1 did not cover the year 1996-97 when he had conducted more than 3 shops. 5. The petitioner in O.P. No. 12878/02 did not produce any certificate to show that he had conducted only less than three shops during the years in question. That petitioner produced only the certificate for the year 1997-98 along with the application for licence as is revaled by Exts. P1 and P2. 6. Therefore, the petitioner should not have been granted preference as it was not clear whether they had conducted more than 3 shops or not. Therefore, the preference shown in favour of the petitioners by the authorities was wrong. For that reason, the petitioners cannot be accused of any suppression of any material fact. Therefore, Ext. P6 in O.P. No. 12536/02 and Ext. P3 in O.P. No. 12878/02 are bad, due to factual mistake in that regard. 7. That will not in any way help the petitioners to get confirmation of the provisional grant in their favour because, as already found above, admittedly, the petitioner in O.P. No. 12536/02 had conducted more than three shops in 1996-97. So he will be out of preferential clause in Rule 5(2). 7. That will not in any way help the petitioners to get confirmation of the provisional grant in their favour because, as already found above, admittedly, the petitioner in O.P. No. 12536/02 had conducted more than three shops in 1996-97. So he will be out of preferential clause in Rule 5(2). So also the petitioner in O.P. No. 12878/02 did not produce the certificate to the effect that he did not conduct more than 3 shops in the relevant years. So he is also out of the preference clause. When they are not, thus, entitled to preference, the provisional grant cannot be confirmed. Therefore, whatever be the reasons stated in Exts. P6 and P3 as the case may be, the conclusion shall be the same. So, I am not interfering with Exts. P6 and P3 respectively as the conclusion therein can be justified on the aforesaid reason that the petitioners are not entitled to the preference in terms of Rule 5(2) of the Rules. 8. Of course 5(17) of the rules provides : "If it is found at any stage that any purchaser of privilege had suppressed facts in his application as to his eligibility including preference or produced fake documents and obtained the privilege declared or confirmed in his name or obtained any licence granted in his name, the licence issued to him, if any, will be cancelled and the whole of the amount paid by him towards the annual rental of the shop, shall be forfeited to Government and the shop resold or otherwise disposed of." Ext. P6/P3 contains an order to this effect. That also is assailed by the petitioners. The petitioners contend that in order to attract Sub Rule 17 of Rule 5, there shall be issuance of licence and its cancellation. Here, no licence has been issued to the petitioner. Only provisional grant was made. Only when it is confirmed, right will accrue to the petitioners. Therefore, there arises no application of Sec. 5(17) of the Rules in this case. 9. No licence was so for issued to them for being cancelled. Moreover, as already found, there was no suppression in the case of either of the petitioners so as to invoke the provisions of Rule 5(17). They were given preference by the District Collector though they were not entitled to it based on the records produced by them. Therefore, forfeiture ordered in Ext. Moreover, as already found, there was no suppression in the case of either of the petitioners so as to invoke the provisions of Rule 5(17). They were given preference by the District Collector though they were not entitled to it based on the records produced by them. Therefore, forfeiture ordered in Ext. P6/P3 is quashed with a direction to return the amount remitted by the respective petitioners within six weeks. Original petition is allowed in part.